Complainant

Respondent

Parties

Brian  Cosgrave

Mega Security  Services Ltd

Representatives

self

Kelvin Hyland Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00070593-001

06/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00070593-002

06/04/2025

The Complainant commenced employment on the 29th of May 2024 with the Respondent as a Janitor/Groundsman at the Manor Mills Shopping Centre and ceased on the 11th April 2025. The Complainant has less than 12 months employment; however, he contends that he was dismissed for making a protected disclosure.

The Respondent disputes that the dismissal was connected to any protected disclosure. The Respondent states that the Complainant repeatedly blamed colleagues for leaving bins unemptied, accusing them of not performing their duties and leaving him to address their shortcomings. These complaints were investigated and were determined to be unfounded. There were several such incidents over the course of his employment. Management concluded that the Complainant was not a team player and that the emptying of bins fell within his own job duties in any event. The dismissal letter stated:

“As a consequence, therefore, and taking into account your length of service I have decided that your employment should be terminated due to the fact that you didn’t demonstrate your skills and ability to perform your role, and you didn’t comply with company policy and procedures. This will take effect on 11/04/2025, you will be paid 1 weeks’ notice, if worked, along with the half day of Holiday Pay owed to you.”

The Complainant was out of work for approximately five months following dismissal and his current earnings are broadly comparable to those earned with the Respondent. The Complainant contends that his communication to management regarding the overflowing bins constituted a protected disclosure on the basis that overflowing bins represent a health hazard to the public.

The Complainant gave evidence on his own behalf. He commenced employment on 29th May 2024 as a Janitor/Groundsman at Manor Mills Shopping Centre. His employment ended on 11th April 2025. He accepts that he does not have 12 months’ continuous service. He contends, however, that he was dismissed for making a protected disclosure and relies on that fact to ground his claim under the Unfair Dismissals Act 1977 as amended.

The Complainant gave evidence that on 3rd April 2025 he reported to management that the bins were overflowing because the previous shift had not emptied them. He maintains that this communication constituted a protected disclosure under section 5(3)(d) of the Protected Disclosures Act 2014, on the basis that overflowing bins represent a health hazard to the public. He stated that the health hazard was self-evident and that it was not necessary for him to have expressly articulated a concern about health or safety at the time of the communication.

The Complainant gave evidence that this was not an isolated complaint. He had previously raised concerns with management about colleagues not being properly trained and not carrying out their duties, which he said resulted in additional work being left for him beyond his normal scheduled duties. He reported those concerns to management on several occasions and stated that management failed to adequately address them.

The Complainant states that he was dismissed on 3rd April 2025, the same date as the communication about the bins overflowing and left for him to clean up, without fair procedures being followed. He contends that the proximity in time between the communication and the dismissal at face value meets the test that the protected disclosure was the reason for the dismissal. He was out of work for approximately five months following his dismissal. His current earnings are broadly comparable to those he received with the Respondent.

At the hearing, the Respondent called three senior members of management to give evidence, including the Managing Director all who had a part in the decision to end the Respondent’s employment: Mr Karl Craig the Respondent’s Manager, Mr Peter Lennon Operations Manager who visited the site on several occasions and Mr Des Mackin Managing Director who ultimately sanctioned the decision.

 Each gave evidence that the decision to end the Complainant’s employment was taken because of his conduct and attitude and specifically, a persistent pattern of blaming colleagues for work that fell within his own duties and an unwillingness to work as part of a team.  Mr Craig stated that the communication about the bins on that day was only seen as another example of the Complainant blaming others without a basis to do so. The decision to end his employment was based on considerations about other work colleagues blamed for work that the Complainant was also meant to do, the fact that soon he would have 12 months continuous service and all 3 formed a view that the Complainant would never be happy with the allocation of work and would require a lot of direction.

The Respondent also opened the Complainant’s job description to show that the bins were part of the Complainant’s Job. That document clearly sets out that the emptying of bins formed part of the Complainant’s own work duties:

Empty bins and pick up rubbish. Twice Daily minimum 

[The Complainant was given the opportunity to object to the late opening of that evidence and was afforded time to consider its contents. He raised no objection and confirmed he was content to proceed. The Respondent relies on both the witness evidence and the job description to rebut the presumption that the communication constituted a protected disclosure and to demonstrate that the dismissal was based on a pattern of conduct over many months and not because of an alleged protected disclosure.]

At the outset, Section 5(8) of the Protected Disclosures Act 2014 as amended provides that in proceedings involving an issue as to whether a disclosure is a protected disclosure, it shall be presumed, until the contrary is proved, that it is. The burden therefore rests on the Respondent to rebut that presumption on the balance of probabilities. In discharge of that burden, the Respondent called three senior managers, including the Managing Director, each of whom gave evidence that the dismissal decision arose because of the Complainant’s conduct and attitude towards work colleagues, he blamed others for not properly cleaning or emptying bins over a period of months.

 The 3rd of April 2025 when the Complainant made a complaint about the previous shift not emptying the bins was the last straw. The emptying of bins was the Complainant’s job and after previously investigating his complaints that had no foundation, management believed matters had settled down; however, they had not. They formed the view that this pattern of blaming others would continue and lead to both employee relations issues such as staff leaving and client service issues. For this reason, they decided to end the  employment contract.

Section 5(1) of the Protected Disclosures Act 2014 defines a “protected disclosure” as a disclosure of relevant information made by a worker. Under section 5(2), information is “relevant information” if, in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in a work-related context.

The relevant wrongdoings are defined in section 5(3). The Complainant relies specifically on subsection (d): that the health or safety of any individual has been, is being or is likely to be endangered.

The Protected Disclosures Act 2014 does not impose a public interest test. Unlike comparable legislation in other jurisdictions, once the conditions in section 5 are satisfied the disclosure attracts the protection of the Act regardless of whether it serves a broader public interest. This is a relevant consideration as the Act is broad in its scope and means many complaints that are primarily workplace grievances under Irish Law can be protected disclosures as well. Section 6 of the Act provides for disclosure to an employer or other responsible person. The communication of 3rd April 2025 was made internally to management.

The Reasonable Belief Test

The leading authority on the interpretation of the reasonable belief test is Barrett v Commissioner of An Garda Síochána [2023] IECA 112, in which the Court of Appeal confirmed that the word “reasonable” in section 5(2) introduces an objective standard. It is not a question of what the worker subjectively or genuinely believed; rather, it is whether his belief was based on reasonable grounds and whether a reasonable person would have held the same belief on the same information. The reasonableness of the belief must be assessed by reference to the facts as known to the worker at the time of the communication.

The Court in Barrett identified the following key principles:

(i)  The communication must disclose some wrongdoing on the part of the employer.

(ii)  The complainant must have had a reasonable belief that the employer was engaged in wrongdoing; “reasonable” connotes an objective standard.

(iii)  The communication must have some informational content.

(iv)  Even if the employer is already aware of the information, the communication may still constitute a protected disclosure if it is drawing the employer’s attention to it.

(v)  The fact that a communication concerns the treatment of the employee making the complaint does not prevent it from being a protected disclosure.

(vi)  The fact that the 2014 Act was not expressly invoked at the time of the communication is not an absolute bar to it being treated as a protected disclosure after the event.

(vii)  What is prohibited by the Act is the penalisation of an employee as a result of having made a protected disclosure.

(viii)  Penalisation means any act or omission that affects a worker to the worker’s detriment and includes disciplining the worker.

(ix)  There must be a connection between the communication and the penalisation.

(x)  A court should be alive both to the possibility that ostensibly legitimate employer actions may in reality be connected to a protected disclosure, and to the possibility that an employer is taking bona fide steps in respect of an employee making unfounded allegations.

A significant feature of this case is that the matter complained of which was the emptying of bins which  was part of the Complainant’s own job duties as a janitor. However, this does not automatically preclude a finding of protected disclosure.

In Nolan v Fingal County Council [2022] IEHC 335 the High Court considered the legislative exception in section 5(5) of the 2014 Act, which provides that a matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute, and does not consist of or involve an act or omission on the part of the employer:

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

Phelan J held that this exception is narrow in scope:

46. Turning then to the correct interpretation of s.5(5). As a limitation on the scope of the protection available under the 2014 Act, it falls to be narrowly construed. In essence it provides that if it is the worker’s or the employer’s role to detect, investigate or prosecute any wrongdoing and the wrongdoing reported relates to a person other than the employer, then it is not a wrongdoing for the purpose of the Act.

47. It seems to me that the Labour Court fell into error in construing the words “to detect, to investigate or to prosecute” widely as embracing general duties on an employer pursuant to an obligation to provide a safe place or safe system of work. While the words may have a disjunctive application, the manner in which they are associated with each other in s. 5(5) also informs their proper interpretation. The Respondent in this case has no role in the prosecution of health and safety omissions as described. In contrast both the Health and Safety Authority and An Garda Síochána may have. It seems to me that the language of “function to detect, to investigate or to prosecute” connotes either a public law role or at least an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting rather than a role which might be implied as arising from the general duties on an employer. Otherwise, s. 5(5) would render s. 5(3) entirely devoid of effect because an obligation to investigate wrongdoing in the workplace could be implied as a general duty of any employer. This cannot have been the statutory intention and the construction adopted by the Labour Court would substantially reduce the effectiveness of the 2014 Act.

In the present case, the Respondent opened the Complainant’s job description at the hearing. That document was adduced in evidence and clearly identifies the emptying of bins as a duty forming part of the Complainant’s own role. The Complainant was afforded an opportunity to object to the late introduction of that evidence and was given time to consider its contents. He raised no objection and confirmed he was content to proceed on that basis. The job description is therefore evidence of his job duties, and I have had regard to it accordingly.

There is a shared agreement between the parties that the communication about the overflowing bins was made on 3rd April 2025 the same date the Complainant received notice that his employment would end. The proximity in time between the disclosure and the dismissal is a material consideration.

In Clarke v CGI Food Services [2020] IEHC which was an interlocutory hearing, Humphrey’s J again provided clarity about when it is legitimate to class a relevant wrongdoing as a protected disclosure even though it is closely linked to that employee’s job description:

12. The employer’s written submissions at para. 50 contend that “the plaintiff’s allegations in respect of pizza being incorrectly stored [do] not amount to a protected disclosure”. But leaving aside the minimising characterisation of a health and safety issue as a mere storage issue, the plaintiff’s communications fall well within the scope of protected disclosures, a point that may become clearer when we examine the issue further below.

14. The employer’s argument in para. 35 of written submissions is that “the financial matters which the plaintiff attempts to portray as constituting protected disclosures do not fall within the definition of protected disclosures [for] the purpose of the Act”. The submissions go on to say at para. 38 “under s. 5(5) of the Act a matter is not a relevant wrongdoing if it is a matter which it is the function of the plaintiff to detect or investigate”. That unfortunately is a complete misquotation of s. 5(5) which states that “A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.” The employer’s submission totally ignores the crucial word “and”, thus fundamentally mischaracterising the meaning of the provision. Where a person such as a group financial controller discovers fraud or wrongdoing by the employer, that is a relevant wrongdoing; and drawing attention to that is making a protected disclosure.

In this judgement he also cautions about accepting that a decision to dismiss is in fact linked to performance and to carefully question if the attempt to frame the dismissal as a performance issue was to hide the true reason for the dismissal:

20. The evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in submissions by the employee, “to dress up the dismissal as a performance related dismissal”. As put by Lord Wilson in Royal Mail Group Ltd. v. Jhuti [2019] UKSC 55 at para. 60, “If a person in the hierarchy of responsibility above the employee … determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.”

21. At the stage of the interim stay, I amn’t making a final finding on any of these matters, but simply holding that it is likely that there are substantial grounds for contending that the dismissal results wholly or mainly from the employee having made a protected disclosure. In particular, factors supporting the argument that the performance issue was a device include the following:

Having considered the factual matrix unique to this case and the applicable law, I am not satisfied, on the balance of probabilities, that the communication made by the Complainant on 3rd April 2025 constitutes a protected disclosure within the meaning of the Protected Disclosures Act 2014 as amended as the employer has rebutted the presumption.

The Statutory Presumption and the Rebuttal

The statutory presumption under section 5(8) of the Act means that the burden of proof rests on the employer to rebut the presumption. It is also the case that the facts as presented by the Complainant meet a prima facie case where he can rely on that presumption in his favour.  This means that the Respondent must rebut it on the balance of probabilities.

The Respondent called three senior managers, including the Managing Director, each of whom gave evidence under oath. Their evidence was consistent, the decision to end the Complainant’s employment was based on a cumulative assessment of his conduct and attitude throughout his employment specifically, a persistent pattern of blaming colleagues for work that fell within his own duties and a demonstrated unwillingness to work as part of a team.

Management was aware that the Complainant was approaching 12 months’ service and made a deliberate judgment, before that threshold was reached to exercise their contractual right to end the contract before that option was significantly qualified by statutory protection. They collectively made that decision because they formed the view that he was not a good fit.

They decision was informed by the pending obligations that 12 months continuous service would place on them. The decision to dismiss had regard to staff retention issues that were likely to occur if the Complainant continued in his role. The interdependency between shifts and handovers and the breakdown in that relationship with other colleagues, led the Respondent to believe if ignored their ability to meet its obligations to its client, the shopping centre would be challenging. That evidence was given under oath by three witnesses. I found it credible and consistent. However, it is also the case that the Complainant had passed his probation period, and these issues were not seen as significant at that time. Now a few months later they were seen to justify the ending of the contract.

The Absence of Fair Procedures

I note that the Respondent terminated the Complainant’s employment on 3rd April 2025 without following fair procedures. That is a matter of concern. However, the absence of fair procedures does not of itself establish that the dismissal was connected to a protected disclosure. The Clarke v CGI decision clearly identifies the need to consider whether the performance and conduct related reasons advanced by the Respondent are genuine or merely an excuse to hide the Respondent’s true motive to punish the Complainant for raising the matter that he believed reasonably to be a protected disclosure. Having regard to the sworn evidence, the documented pattern of complaints against colleagues, the prior investigation by management into the resourcing complaint which found resources to be adequate and the proximity of the dismissal to the Complainant approaching 12 months’ service, the records opened at the hearing, I am satisfied that the reasons advanced were genuine. The absence of procedure is explained by the nature of the decision being made, this was not a disciplinary process but an operational judgment, made before statutory qualifying service accrued, that the Complainant was not a suitable fit and the right in common law to terminate a contract. That is consistent with the evidence of all three witnesses. That does not mean the absence of fair procedures is being condoned. The employer in essence was exercising a contractual right before a statutory right would limit that option.

 Overflowing Bins

I accept that the bins were overflowing on the morning of 3rd April 2025. That is a matter of fact and is not in dispute. Satisfying the factual limb of section 5(2) does not, however, automatically satisfy the reasonable belief limb.

Applying the objective test in Barrett v Commissioner of An Garda Síochána [2023] IECA 112, I do not find that the Complainant held a reasonable belief that the health or safety of any individual had been, was being, or was likely to be endangered within the meaning of section 5(3)(d). The test requires not what the Complainant subjectively believed but what a reasonable person, possessed of the same information, would have believed.

The communication was made on a Monday morning. The state of the bins was entirely consistent with the ordinary accumulation of waste over a busy weekend trading period. The cleaning crew had finished their shift at approximately 6pm on Sunday. The centre remained open until 8.30pm, with a restaurant trading on the premises. The filling of bins in that window was a foreseeable and routine consequence of normal operations. An informed and objective person, confronted with overflowing bins on a Monday morning, would ask why they were overflowing. On these facts, the answer points not to any wrongdoing or endangerment but to a predictable operational situation that the incoming janitor was employed and expected to address. The Contractor was not obligated to provide cleaning services up to 8.30pm or to always ensure that bins would not overflow. That condition would be onerous and require significantly more staff.

Furthermore, the Complainant had previously raised concerns about resourcing and the conduct of colleagues. Management investigated those concerns and were satisfied that the resources on site were adequate. A reasonable person who had been informed following investigation that resources were adequate would not, on encountering a routine Monday morning situation, form the belief that health or safety was being endangered. Previous janitors who held the same role had managed the same workload without difficulty, which further confirms that the resourcing was adequate and that the situation was not one that objectively gave rise to a health and safety concern and was more about a complaint made against other work colleagues.

The Complainant stated at the hearing that the health hazard from overflowing bins was self-evident. However, on balance this is a characterisation applied after the fact rather than a belief that informed the communication at the time it was made. The Complainant accepted that in his extensive communication to management safety is not mentioned at all. What is mentioned is workload.

 There is a judgement to be made about the risk of any overflowing bin and to public safety. That must apply a proportionality test and that a threshold must be passed before that is the case. In this case I find on the facts that the communication was principally a grievance about others leaving a mess for this worker to clean up. I don’t find on the facts that an informed person would find that the Complainant had a reasonable belief that this tended to show one or more relevant wrongdoings. It is more probable that an informed person would look at the job description and see it was part of his job to empty the bins and what was at issue was the handover and what he perceived to be unfair. On the photographic evidence it is not the case that a significant build-up of refuse and waste had occurred. If the bins were emptied at that start of the Monday shift, it would be an adequate measure to address the safety concern as the Shopping Centre was closed at 8.30pm. The photographs of a bin show some overflowing but not to the extent that a reasonable person would have an apprehension of real an imminent hazard. The question then is the system in place adequate to address overflowing bins and on the balance of probabilities they are.

Section 5(5A): Personal Grievance Exclusion

I am satisfied that the reasonable belief threshold has not been met.

Separately the communication could be excluded under section 5(5A) of the Act as inserted by the Protected Disclosures (Amendment) Act 2022. Section 5(5A) provides that a matter concerning interpersonal grievances exclusively affecting the reporting person, namely grievances about interpersonal conflicts between the reporting person and another worker, shall not be a relevant wrongdoing for the purposes of the Act.

The evidence establishes that the Complainant made a series of complaints throughout his employment about colleagues not being properly trained, not doing their work, and leaving him with excessive workload as a result. The communication of 3rd April 2025 was the latest in that pattern. In substance, each of those complaints including the bins complaint concerned the conduct of other workers and the impact of that conduct on the Complainant personally. There is nothing in the evidence to suggest that the communication went beyond that interpersonal dimension. I am satisfied that the matter complained of concerned an interpersonal grievance exclusively affecting the Complainant within the meaning of section 5(5A) and does not constitute a relevant wrongdoing.

Section 5(5): The Worker’s Own Function and the Employer’s Obligation

Section 5(5) of the Act provides that a matter is not a relevant wrongdoing if it is a matter which it is the function of the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer. The job description opened in evidence by the Respondent, and accepted without objection by the Complainant, expressly identifies the emptying of bins as a duty forming part of the Complainant’s own role. However, as confirmed in Nolan v Fingal County Council [2022] and consistent with section 5(5), a worker may still rely on a protected disclosure in respect of a matter within his own function if that matter discloses information tending to show that the employer was engaged in wrongdoing. I have considered whether that qualification applies here.

The Respondent is a cleaning contractor providing services to the shopping centre pursuant to a contract. That contract requires an acceptable, not a perfect, standard of cleanliness. The Respondent is not obliged to monitor bins continuously or to ensure they are always empty. The obligation is to have adequate services in place, and the evidence is that it did. The Monday morning janitor was that service. His work on commencing his shift was to assess and address the state of the premises after the weekend, including the bins. Management had previously investigated the Complainant’s concerns about resourcing and were satisfied that the resources on site were adequate. Previous janitors in the same role had managed the same workload without difficulty.

The overflowing bins on 3rd April 2025 did not tend to show any act or omission on the part of the Respondent. The bins were full because of normal weekend trading, a foreseeable and routine consequence of operations. The Respondent had an adequate system in place to address exactly that situation. The Complainant was that system. Rather than performing that function, he complained about colleagues on the previous shift. The communication therefore does not disclose any wrongdoing by the employer and section 5(5) applies to exclude it.

CA-00070593-001 Protected Disclosure:

I have determined that the Complainant did not make a protected disclosure, and the complaint is not well founded. In arriving at that conclusion, I have had regard to the entire factual matrix where the role of the contractor is to provide cleaning services as contracted by the shopping centre. In turn the Complainant as a janitor was employed to clean and emptying bins was part of the job.

I am satisfied, for each of the reasons set out in the findings , that the communication of 3rd April 2025 did not constitute a protected disclosure within the meaning of the Protected Disclosures Act 2014 as amended. The reasonable belief threshold under section 5(2) is not met based on the balance of probabilities test as detailed in Barrett. The communication also falls within the personal grievance exclusion under section 5(5A). It does not disclose any act or omission on the part of the Respondent within the meaning of section 5(5).

 Crucially the presumption under section 5(8) has been rebutted by the sworn evidence of three senior managers including the Managing Director and the records opened at the hearing. The emptying of bins at the start of the shift was also the Complainant’s job. The factual matrix supports the conclusion that the matter complained about was essentially about workload and the failure of others to leave the bins emptied for the next shift. The Complainant was employed to empty bins as part of his schedule of duties. No evidence corroborated the Complainant’s view that his communication was a complaint about a health hazard. No detriment arises as the communication does not constitute a protected disclosure. The Complaint is not well founded.

CA-00070593-002 Unfair Dismissal:

 As the Complainant cannot avail of section 6(2) (ba) of the Unfair Dismissals Act 1977, and as he does not have the requisite 12 months’ continuous service, his complaint must fail. I determine that I have no jurisdiction to hear the complaint as the statutory service requirement has not been met. I determine that the complaint is not well founded.

Protected Disclosure, Unfair Dismissal, Reasonable Belief